[2025] UKUT 00276 (IAC)

Lord Nicholls stated in Spath Holme at §396 that:

“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.”

The term “preliminary” in article 3(m) of the 2009 Order gains colour not simply generally from the Order - and indeed the delegating statute (TCEA 2007) - but from the words immediately surrounding words in article 3(m): “ancillary” and “procedural”.

As noted, the Court of Appeal held in Singh that costs decisions are ancillary. We perceive “procedural decisions” to include classic case management decisions, such as whether to adjourn a hearing or admit (or exclude) certain evidence from it, whether to conduct a hearing remotely, or whether to continue in the absence of a party.

What is characteristic about costs decisions and case management decisions - the ancillary and the procedural - is that they generally involve exercises of the court’s discretion. There is a sharp contrast between such a decision and a hard-edged decision of law. A decision as to whether the Tribunal has jurisdiction to hear an appeal (in this case, whether the appeal fell to be treated as abandoned under section 104(4A) of the NIAA 2002) is a question of law, not a question of discretion.

It is here that one can better assess the Respondent’s submission that there are dispositive decisions that are also preliminary. Indeed, the Respondent raised the further argument that if the Secretary of State’s case really was that dispositive decisions should be challengeable on appeal to the Upper Tribunal, there would be a plethora of further decisions going up to the Upper Tribunal.

Taking that second argument first, it is essentially a floodgates argument, advanced in terrorem. Such issues are usually a matter of policy, subject to interpretations of the instrument that contravene the ascertainable legislative purpose. What seems to us to be important is to retain focus on the intrinsic quality of the decision under examination.

The particular example of a dispositive decision liable to open floodgates cited by the Respondent in argument was a decision not to extend time to admit a late notice of appeal. That refusal would be terminatory (termed “dispositive”) and is not subject to appeal to the Upper Tribunal. Mr Malik asked, principally rhetorically, whether the Secretary of State really wanted such decisions to become open to appeal to the Upper Tribunal.

In fact, this example perfectly illustrates the true distinction of principle. A refusal to extend time is quintessentially procedural. It engages the case management discretion of the court. It does not go to the merits of the case, although the importance and significance of the case is a factor to weigh. Primarily, it examines the reason for delay and the relative prejudice to the parties by granting the application. Such a decision on whether to extend time has two qualities: (1) it is procedural, and (2) it is discretionary. There is a sharp contrast between such a decision and a ruling on the legal status and effect of a document like the BRP. That is a pure decision of law which goes to the heart of the case. It involves no discretion. It would be surprising indeed if such a central and pivotal decision on the law - pivotal in the literal sense of the case pivoting fundamentally one way or the other on the outcome - should not be precisely that kind of potential error of law that the tribunal appeal structure with direct remedy by way of appeal to the Upper Tribunal was designed to correct.

This view is reinforced by the third rule of statutory interpretation.